You are on page 1of 17

aspect of privacy, as claimed by the petitioners.

This is the

test we have applied in the instant case.

(ii) There needs to be balancing of two competing

fundamental rights, right to privacy on the one hand and right

to food, shelter and employment on the other hand.

Axiomatically both the rights are founded on human dignity. At

the same time, in the given context, two facets are in conflict

with each other. The question here would be, when a person

seeks to get the benefits of welfare schemes to which she is

entitled to as a part of right to live life with dignity, whether her

sacrifice to the right to privacy, is so invasive that it creates


(j) In the process, sanctity of privacy in its functional

relationship with dignity is kept in mind where it says that

legitimate expectation of privacy may vary from intimate zone to

the private zone and from the private to public arena.

Reasonable expectation of privacy is also taken into

consideration. The Court finds that as the information collected at

the time of enrolment as well as authentication is minimal,

balancing at the first level is met. Insofar as second level,

namely, balancing of two competing fundamental rights is

concerned, namely, dignity in the form of autonomy (informational

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 551 of 567
privacy) and dignity in the form of assuring better living standards

of the same individual, the Court has arrived at the conclusion

that balancing at the second level is also met. The detailed

discussion in this behalf amply demonstrates that enrolment in

Aadhaar of the unprivileged and marginalised section of the

society, in order to avail the fruits of welfare schemes of the

Government, actually amounts to empowering these persons. On

the one hand, it gives such individuals their unique identity and,

on the other hand, it also enables such individuals to avail the

fruits of welfare schemes of the Government which are floated as

socio-economic welfare measures to uplift such classes. In that

sense, the scheme ensures dignity to such individuals. This facet

of dignity cannot be lost sight of and needs to be acknowledged.

We are, by no means, accepting that when dignity in the form of

economic welfare is given, the State is entitled to rob that person

of his liberty. That can never be allowed. We are concerned with

the balancing of the two facets of dignity. Here we find that the

inroads into the privacy rights where these individuals are made

to part with their biometric information, is minimal. It is coupled

with the fact that there is no data collection on the movements of

such individuals, when they avail benefits under Section 7 of the

Act thereby ruling out the possibility of creating their profiles. In

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 552 of 567
fact, this technology becomes a vital tool of ensuring good

governance in a social welfare state. We, therefore, are of the

opinion that the Aadhaar Act meets the test of balancing as well.

(k) Insofar as the argument based on probabilistic system of

Aadhaar, leading to ‘exclusion’ is concerned, the Authority has

claimed that biometric accuracy is 99.76% and the petitioners

have also proceeded on that basis. In this scenario, if the

Aadhaar project is shelved, 99.76% beneficiaries are going to

suffer. Would it not lead to their exclusion? It will amount to

throwing the baby out of hot water along with the water. In the

name of 0.232% failure (which can in any case be remedied)

should be revert to the pre-Aadhaar stage with a system of

leakages, pilferages and corruption in the implementation of

welfare schemes meant for marginalised section of the society,

the full fruits thereof were not reaching to such people?

(l) The entire aim behind launching this programme is the

‘inclusion’ of the deserving persons who need to get such

benefits. When it is serving much larger purpose by reaching

hundreds of millions of deserving persons, it cannot be crucified

on the unproven plea of exclusion of some. It is clarified that the

Court is not trivialising the problem of exclusion if it is there.

However, what we are emphasising is that remedy is to plug the

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 553 of 567
loopholes rather than axe a project, aimed for the welfare of large

section of the society. Obviously, in order to address the failures

of authentication, the remedy is to adopt alternate methods for

identifying such persons, after finding the causes of failure in their

cases. We have chosen this path which leads to better

equilibrium and have given necessary directions also in this

behalf, viz:

(i) We have taken on record the statement of the learned

Attorney General that no deserving person would be denied

the benefit of a scheme on the failure of authentication.

(ii) We are also conscious of the situation where the

formation of fingerprints may undergo change for various

reasons. It may happen in the case of a child after she grows

up; it may happen in the case of an individual who gets old; it

may also happen because of damage to the fingers as a result

of accident or some disease etc. or because of suffering of

some kind of disability for whatever reason. Even iris test can

fail due to certain reasons including blindness of a person.

We again emphasise that no person rightfully entitled to the

benefits shall be denied the same on such grounds. It would

be appropriate if a suitable provision be made in the

concerned regulations for establishing an identity by alternate

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 554 of 567
means, in such situations.

(m) As far as subsidies, services and benefits are concerned,

their scope is not to be unduly expanded thereby widening the net

of Aadhaar, where it is not permitted otherwise. In this respect, it

is held as under:

(i) ‘Benefits’ and ‘services’ as mentioned in Section 7

should be those which have the colour of some kind of

subsidies etc., namely, welfare schemes of the Government

whereby Government is doling out such benefits which are

targeted at a particular deprived class.

(ii) It would cover only those ‘benefits’ etc. the

expenditure thereof has to be drawn from the Consolidated

Fund of India.

(iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot

make the requirement of Aadhaar mandatory as they are

outside the purview of Section 7 and are not backed by any


(3) Whether children can be brought within the sweep of

Sections 7 and 8 of the Aadhaar Act?

(a) For the enrolment of children under the Aadhaar Act, it

would be essential to have the consent of their parents/guardian.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 555 of 567
(b) On attaining the age of majority, such children who are

enrolled under Aadhaar with the consent of their parents, shall be

given the option to exit from the Aadhaar project if they so choose

in case they do not intend to avail the benefits of the scheme.

(c) Insofar as the school admission of children is concerned,

requirement of Aadhaar would not be compulsory as it is neither a

service nor subsidy. Further, having regard to the fact that a child

between the age of 6 to 14 years has the fundamental right to

education under Article 21A of the Constitution, school admission

cannot be treated as ‘benefit’ as well.

(d) Benefits to children between 6 to 14 years under Sarv

Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar


(e) For availing the benefits of other welfare schemes which are

covered by Section 7 of the Aadhaar Act, though enrolment

number can be insisted, it would be subject to the consent of the

parents, as mentioned in (a) above.

(f) We also clarify that no child shall be denied benefit of any of

these schemes if, for some reasons, she is not able to produce

the Aadhaar number and the benefit shall be given by verifying

the identity on the basis of any other documents. This we say

having regard to the statement which was made by Mr. K.K.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 556 of 567
Venugopal, learned Attorney General for India, at the Bar.

(4) Whether the following provisions of the Aadhaar Act and

Regulations suffer from the vice of unconstitutionality:

(i) Sections 2(c) and 2(d) read with Section 32

(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI & VII –
Regulations 27 to 32
(xiii) Section 29
(xiv) Section 33
(xv) Section 47
(xvi) Section 48
(xvii) Section 57
(xviii) Section 59


(a) Section 2(d) which pertains to authentication records, such

records would not include metadata as mentioned in Regulation

26(c) of the Aadhaar (Authentication) Regulations, 2016.

Therefore, this provision in the present form is struck down.

Liberty, however, is given to reframe the regulation, keeping in

view the parameters stated by the Court.

(b) Insofar as Section 2(b) is concerned, which defines

‘resident’, the apprehension expressed by the petitioners was that

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 557 of 567
it should not lead to giving Aadhaar card to illegal immigrants.

We direct the respondent to take suitable measures to ensure

that illegal immigrants are not able to take such benefits.

(c) Retention of data beyond the period of six months is

impermissible. Therefore, Regulation 27 of Aadhaar

(Authentication) Regulations, 2016 which provides archiving a

data for a period of five years is struck down.

(d) Section 29 in fact imposes a restriction on sharing

information and is, therefore, valid as it protects the interests of

Aadhaar number holders. However, apprehension of the

petitioners is that this provision entitles Government to share the

information ‘for the purposes of as may be specified by

regulations’. The Aadhaar (Sharing of Information) Regulations,

2016, as of now, do not contain any such provision. If a provision

is made in the regulations which impinges upon the privacy rights

of the Aadhaar card holders that can always be challenged.

(e) Section 33(1) of the Act prohibits disclosure of information,

including identity information or authentication records, except

when it is by an order of a court not inferior to that of a District

Judge. We have held that this provision is to be read down with

the clarification that an individual, whose information is sought to

be released, shall be afforded an opportunity of hearing. If such

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 558 of 567
an order is passed, in that eventuality, he shall also have right to

challenge such an order passed by approaching the higher court.

During the hearing before the concerned court, the said individual

can always object to the disclosure of information on accepted

grounds in law, including Article 20(3) of the Constitution or the

privacy rights etc.

(f) Insofar as Section 33(2) is concerned, it is held that

disclosure of information in the interest of national security cannot

be faulted with. However, for determination of such an

eventuality, an officer higher than the rank of a Joint Secretary

should be given such a power. Further, in order to avoid any

possible misuse, a Judicial Officer (preferably a sitting High Court

Judge) should also be associated with. We may point out that

such provisions of application of judicial mind for arriving at the

conclusion that disclosure of information is in the interest of

national security, are prevalent in some jurisdictions. In view

thereof, Section 33(2) of the Act in the present form is struck

down with liberty to enact a suitable provision on the lines

suggested above.

(g) Insofar as Section 47 of the Act which provides for the

cognizance of offence only on a complaint made by the Authority

or any officer or person authorised by it is concerned, it needs a

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 559 of 567
suitable amendment to include the provision for filing of such a

complaint by an individual/victim as well whose right is violated.

(h) Insofar as Section 57 in the present form is concerned, it is

susceptible to misuse inasmuch as: (a) It can be used for

establishing the identity of an individual ‘for any purpose’. We

read down this provision to mean that such a purpose has to be

backed by law. Further, whenever any such “law” is made, it

would be subject to judicial scrutiny. (b) Such purpose is not

limited pursuant to any law alone but can be done pursuant to

‘any contract to this effect’ as well. This is clearly impermissible

as a contractual provision is not backed by a law and, therefore,

first requirement of proportionality test is not met. (c) Apart from

authorising the State, even ‘any body corporate or person’ is

authorised to avail authentication services which can be on the

basis of purported agreement between an individual and such

body corporate or person. Even if we presume that legislature

did not intend so, the impact of the aforesaid features would be to

enable commercial exploitation of an individual biometric and

demographic information by the private entities. Thus, this part of

the provision which enables body corporate and individuals also

to seek authentication, that too on the basis of a contract between

the individual and such body corporate or person, would impinge

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 560 of 567
upon the right to privacy of such individuals. This part of the

section, thus, is declared unconstitutional.

(i) Other provisions of Aadhaar Act are held to be valid,

including Section 59 of the Act which, according to us, saves the

pre-enactment period of Aadhaar project, i.e. from 2009-2016.

(5) Whether the Aadhaar Act defies the concept of Limited

Government, Good Governance and Constitutional Trust?


Aadhaar Act meets the concept of Limited Government,

Good Governance and Constitutional Trust.

(6) Whether the Aadhaar Act could be passed as ‘Money Bill’

within the meaning of Article 110 of the Constitution?


(a) We do recognise the importance of Rajya Sabha (Upper

House) in a bicameral system of the Parliament. The significance

and relevance of the Upper House has been succinctly

exemplified by this Court in Kuldip Nayar’s case. The Rajya

Sabha, therefore, becomes an important institution signifying

constitutional fedaralism. It is precisely for this reason that to

enact any statute, the Bill has to be passed by both the Houses,

namely, Lok Sabha as well as Rajya Sabha. It is the

constitutional mandate. The only exception to the aforesaid

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 561 of 567
Parliamentary norm is Article 110 of the Constitution of India.

Having regard to this overall scheme of bicameralism enshrined

in our Constitution, strict interpretation has to be accorded to

Article 110. Keeping in view these principles, we have

considered the arguments advanced by both the sides.

(b) The petitioners accept that Section 7 of the Aadhaar Act has

the elements of ‘Money Bill’. The attack is on the premise that

some other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57

of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and

57 of the Aadhaar Act) do not fall under any of the clauses of

Article 110 of the Constitution and, therefore, Bill was not limited

to only those subjects mentioned in Article 110. Insofar as

Section 7 is concerned, it makes receipt of subsidy, benefit or

service subject to establishing identity by the process of

authentication under Aadhaar or furnish proof of Aadhaar etc. It

is also very clearly declared in this provision that the expenditure

incurred in respect of such a subsidy, benefit or service would be

from the Consolidated Fund of India. It is also accepted by the

petitioners that Section 7 is the main provision of the Act. In fact,

introduction to the Act as well as Statement of Objects and

Reasons very categorically record that the main purpose of

Aadhaar Act is to ensure that such subsidies, benefits and

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 562 of 567
services reach those categories of persons, for whom they are

actually meant.

(c) As all these three kinds of welfare measures are sought to

be extended to the marginalised section of society, a collective

reading thereof would show that the purpose is to expand the

coverage of all kinds of aid, support, grant, advantage, relief

provisions, facility, utility or assistance which may be extended

with the support of the Consolidated Fund of India with the

objective of targeted delivery. It is also clear that various

schemes which can be contemplated by the aforesaid provisions,

relate to vulnerable and weaker section of the society. Whether

the social justice scheme would involve a subsidy or a benefit or

a service is merely a matter of the nature and extent of

assistance and would depend upon the economic capacity of the

State. Even where the state subsidizes in part, whether in cash

or kind, the objective of emancipation of the poor remains the


(d) The respondents are right in their submission that the

expression subsidy, benefit or service ought to be understood in

the context of targeted delivery to poorer and weaker sections of

society. Its connotation ought not to be determined in the

abstract. For as an abstraction one can visualize a subsidy being

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 563 of 567
extended by Parliament to the King; by Government to the

Corporations or Banks; etc. The nature of subsidy or benefit

would not be the same when extended to the poor and

downtrodden for producing those conditions without which they

cannot live a life with dignity. That is the main function behind

the Aadhaar Act and for this purpose, enrolment for Aadhaar

number is prescribed in Chapter II which covers Sections 3 to

6. Residents are, thus, held entitled to obtain Aadhaar number.

We may record here that such an enrolment is of voluntary

nature. However, it becomes compulsory for those who seeks to

receive any subsidy, benefit or service under the welfare scheme

of the Government expenditure whereof is to be met from the

Consolidated Fund of India. It follows that authentication under

Section 7 would be required as a condition for receipt of a

subsidy, benefit or service only when such a subsidy, benefit or

service is taken care of by Consolidated Fund of India.

Therefore, Section 7 is the core provision of the Aadhaar Act and

this provision satisfies the conditions of Article 110 of the

Constitution. Upto this stage, there is no quarrel between the


(e) On examining of the other provisions pointed out by the

petitioners in an attempt to take it out of the purview of Money

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 564 of 567
Bill, we are of the view that those provisions are incidental in

nature which have been made in the proper working of the Act.

In any case, a part of Section 57 has already been declared

unconstitutional. We, thus, hold that the Aadhaar Act is validly

passed as a ‘Money Bill’.

(7) Whether Section 139AA of the Income Tax Act, 1961 is

violative of right to privacy and is, therefore, unconstitutional?

Validity of this provision was upheld in the case of Binoy

Viswam by repelling the contentions based on Articles 14 and 19

of the Constitution. The question of privacy which, at that time,

was traced to Article 21, was left open. The matter is reexamined

on the touchstone of principles laid down in K.S. Puttaswamy.

The matter has also been examined keeping in view that manifest

arbitrariness is also a ground of challenge to the legislative

enactment. Even after judging the matter in the context of

permissible limits for invasion of privacy, namely: (i) the existence

of a law; (ii) a ‘legitimate State interest’; and (iii) such law should

pass the ‘test of proportionality’, we come to the conclusion that

all these tests are satisfied. In fact, there is specific discussion

on these aspects in Binoy Viswam’s case as well.

(8) Whether Rule 9 of the Prevention of Money Laundering

(Maintenance of Records) Rules, 2005 and the notifications
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 565 of 567
issued thereunder which mandates linking of Aadhaar with bank
accounts is unconstitutional?

(a) We hold that the provision in the present form does not

meet the test of proportionality and, therefore, violates the right to

privacy of a person which extends to banking details.

(b) This linking is made compulsory not only for opening a new

bank account but even for existing bank accounts with a

stipulation that if the same is not done then the account would be

deactivated, with the result that the holder of the account would

not be entitled to operate the bank account till the time seeding of

the bank account with Aadhaar is done. This amounts to

depriving a person of his property. We find that this move of

mandatory linking of Aadhaar with bank account does not satisfy

the test of proportionality. To recapitulate, the test of

proportionality requires that a limitation of the fundamental rights

must satisfy the following to be proportionate: (i) it is designated

for a proper purpose; (ii) measures are undertaken to effectuate

the limitation are rationally connected to the fulfilment of the

purpose; (iii) there are no alternative less invasive measures; and

(iv) there is a proper relation between the importance of achieving

the aim and the importance of limiting the right.

(c) The Rules are held to be disproportionate for the reasons

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 566 of 567
stated in the main body of this Judgment.

(9) Whether Circular dated March 23, 2017 issued by the

Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?
Circular dated March 23, 2017 mandating linking of mobile

number with Aadhaar is held to be illegal and unconstitutional as

it is not backed by any law and is hereby quashed.

(10) Whether certain actions of the respondents are in

contravention of the interim orders passed by the Court, if so, the
effect thereof?

This question is answered in the negative.

448) In view of the aforesaid discussion and observations, the writ

petitions, transferred cases, special leave petition, contempt

petitions and all the pending applications stand disposed of.



SEPTEMBER 26, 2018.

Writ Petition (Civil) No. 494 of 2012 & connected matters Page 567 of 567